' Mst. Kaneez Akhtar alias Bano, sister of Safdar Ali complainant son of Muhammad Shafi, was married to Muhammad Tufail son of Muhammad Alm, a real brother of Muhammad Fayyaz petitioner-accused. Her husband Muhammad Tufail had gone to Saudi Arabia to earn his livelihood. On 13-9-1997 Mst. Kaneez Akhtar died who was buried. Safdar Ali complainant was not satisfied and had the impression that she did not die a natural death. He submitted an application before the District Magistrate, Sialkot for the disinterment of her dead body and postmortem examination. The District Magistrate, Sialkot passed the order for holding the inquiry in the matter.
Mr. Sikandar Hayat Executive Magistrate 1st Class; Sialkot conducted the inquiry who recorded the statements of Safdar Ali, Muzaffar Hussain and Muhammad Sadiq who deposed about her unnatural death. Tanvir Hussain alias Shani, a son of the deceased from Muhammad Tufail, Muhammad Alam co-accused, Sagheer Ahmad Ghumman and Muhammad Tufail stated about her death through electric shock. Muhammad Tufail husband of Mst. Kaneez Akhtar also appeared and stated that he was informed that his wife had died who arrived in Pakistan where he was intimated that she died due to electric shock. The Executive Magistrate submitted the report and expressed the opinion that Mst. Kaneez Akhtar died of electric shock. However, he recommended for exhumation of the dead body. The District Magistrate passed the order on 19-9-1997 in this regard.
2. The dead body of Mst. Kaneez Akhtar was exhumed and the post-mortem examination was conducted on 24-9-1997. The material was sent to the Chemical Examiner as well as the Bacteriologist. According to the Report of the Chemical Examiner dated 18-11-1997 poison was not detected in the articles of the dead body sent to him and examined by him. In his report dated Bacteriologist, Govern-anent of the Punjab, expressed that no evidence of ante-mortem injury or fracture was seen. On the application of Safdar Ali complainant the District Magistrate passed the order on 9-6-1998 directing the Superintendent of Police, Sialkot to register the F.I.R. And in this regard he sent covering Letter No,4557, dated 11-6-1998. It was thereafter that F.I.R. No,337, dated 22-6-1998 was registered at Police Station Uggoki, District Sialkot under section 302/34, Pakistan Penal Code.
3. Both Fiaz Ahmad petitioner-accused and his father Muhammad Alam co-accused were arrested who moved the learned Sessions Judge, Sialkot for their admission to bail. Vide order dated 26-9-1998 Muhammad Alam co-accused was admitted to bail with the reasoning that "keeping in view the overt act attributed to this petitioner and his age and weak health which would also make this case a matter of further inquiry, if on account of his age he could have done so".
However, the plea of alibi raised by Faiz Ahmad petitioner was not given the weight. Whole of the material collected by the prosecution was taken into account and the bail application of Faiz Ahmad was dismissed who had filed this petition before this Court to try his luck to be admitted to bail.
4. The police has recorded the statements of Mst. Sheeba and her brother Tanvir alias Shani on 13- 7-1998 to the effect that due to the dispute of the raising of a partition wall in the house their paternal grand-father Muhammad Alam and paternal uncle Faiz Ahmad threatened their mother and that at night her mother was taken away by Faiz Ahmad whose shriek was heard after some time when they were informed that in the Courtyard their another Mst. Kaneez. Akhtar had died due to electric shock. Mst. Gliulam Fatima, Mst. Ruqia Bibi and Mst. Sheda Bibi were also examined on 13-7-1998 by the police who stated that at the time of the last bath of Mst. Kaneez Akhtar deceased which was performed by them they had seen the marks of violence on her throat, right arm and back. Amjad Hussain, Nazir Ahmad and Shabbir Ahmad stated that Muhammad Alam came to them along with Muhammad Afzal and Nawaz Ghumman and made the extra-judicial confession.
The medical evidence comprising the post-mortem report as well as the reports of the Bacteriologist and the Chemical Examiner have also been collected by the police.
5. I have heard the learned counsel for the parties as well as learned State Counsel and gone through the record before me. The contentions 'of the learned counsel for Faiz Ahmad petitioner are that Tanvir Hussain alias Shani aged 14 years, son of the deceased, appeared before the Executive Magistrate 1st Class on 18-9-1997 who did not implicate Faiz Ahmad petitioner. He added that the female P.Ws. Did not raise any hue and cry at the time of last bath of the deceased and that the statements of all the aforesaid P.Ws. Recorded under section 161 of the Code of Criminal Procedure on 13-7-1998 shall have to be viewed with caution especially when Mst. Kaneez Akhtar died on 13-9-1997 whose autopsy was conducted on 24-9-1997 after exhumation of the dead body.
He maintained that the statement of Mst. Sheeba daughter of Mst. Kaneez Akhtar deceased recorded on 13-7-1998 as well as the statement of Tanvir Hussain alias Shani recorded on 13-7-1998 by the police stand contradicted by the statement of Tanvir Hussain alias Shani recorded on 18-9- 1997 by the Executive Magistrate 1st Class and that is enough to make the case of the prosecution against this petitioner that of further inquiry. He continued that the report of the Bacteriologist has made out that there was no fracture on the neck of Mst. Kantez Akhtar. He also referred to the delay in the matter of registration of the case on 22-6-1998 and canvassed that the parlays were initiated by Safdar Ali complainant with respect to the property left by Mst. Kaneez Akhtar deceased which could not materialize who moved the application before the District 'Magistrate even though the last evidence was prepared on 7-1-1998 in the form of report of the Bacteriologist, Government of the Punjab, Lahore.
6. On the contrary learned State Counsel and the learned counsel for the complainant laid the emphasis that the accused has not been able to produce any evidence to the effect that Mst.
Kaneez Akhtar died of electric shock and that the statements of the P.Ws. ' recorded by the police as well as the post-mortem report have prima facie connected him with the present occurrence which falls within the prohibitory clause.
7. In my view the reasoning adopted by the learned counsel for Faiz AhMad petitioner-accused has to prevail. The report of the Bacteriologist has to be considered at this stage to make out that the deeper merits of the case shall have to be analysed and dissected during the trial and that the postmortem report> is not enough to make me withhold the concession of bail. Legally the prosecution has to bank upon the strength of its case and the accused have to face the trial. The fact of the matter is that even though whole of the evidence was collected till 11-1-1998 the petition was filed by Safdar Ali complainant before the District Magistrate, Sialkot on 9-6-1998 for the registration of the case which was registered at F.I.R. No,337, dated 22-6-1998 at Police Station Uggoki, District Sialkot under section 302/34, Pakistan Penal Code. It was thereafter that the statements of the aforesaid P.Ws. Were recorded. The considerable lapse of time between the recording of the statements of the P.Ws. On 13-7-1998 by the police and the date of death of Mst. Kaneez Akhtar i,e, 13-9-1997 and that of the post-mortem examination i,e, 19-9-1997 has made me to hold that the statements of the P.Ws. Shall have to be viewed with caution even at this stage. The female P.Ws. Who washed the dead body before the funeral kept mum and did not inform anybody except the police after autopsy when examined on 13-7-1998. With respect to the alleged motive i,e, the existence of the dispute about the construction of any wall no independent evidence has been collected by the police and even no site-plan has been got drafted thereof. .
The delay in the matter of registration of F.I.R. After the complete collection of the medical evidence is also a circumstance in favour of Faiz Ahmad petitioner-accused. The cumulative effect of the aforesaid analysis of the matter at this initial stage and discussion is that the assertions of the learned State counsel and the learned counsel for the complainant need not be given the weight.
The learned Sessions Judge has held that the case of Muhammad Alam is that of further inquiry.
No specific role has individually been attributed to Faiz Ahmad petitioner and his father Muhammad Alam. As such I hold that the case of the prosecution against Faiz Ahmad is also that of further inquiry. It shall not be out of place to express that in view of the recitals of the F.I.R. And the fact that Muhammad Alam co-accused has been admitted to bail by the learned Sessions Judge.
It can safely be held that the petitioner has also to sail with his co-accused Muhammad Alam in the same boat for the purpose of his admission to 1-ail the attraction of rule of consistency.
8. For what has been said above, I accept this petition and admit Faiz Ahmad petitioner-accused to bail in the sum of Rs,50,000 (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Sialkot with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail.